JASON A. COPELAND, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Lake County, Mark J. Hill, Judge.
S. Purdy, Public Defender, and Raymond M. Warren and Brian F.
Smith, Assistant Public Defenders, Daytona Beach, for
Moody, Attorney General, Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona Beach, for Appellee.
A. Copeland was convicted after trial of aggravated assault
with a deadly weapon resulting from a "road rage"
incident. He raises two arguments in this direct appeal, one
of which we find to be dispositive. We agree that, on the
face of the record, Copeland's trial counsel was
ineffective for failing to request a jury instruction for the
justifiable use of nondeadly force. Accordingly, we
and the victim, Troy Twigg, both testified at trial. Without
going into great detail, Copeland was riding on his
motorcycle, and Twigg was driving his car in the same
direction on U.S. Highway 27 in Lake County, Florida, when
their respective driving patterns apparently became
disagreeable to each other. They do agree, however, on one
thing: Copeland pulled out a handgun. Twigg testified that
Copeland pointed the gun at him and threatened to kill him.
Copeland denied making any threats, testifying that he only
pulled his gun out to deter Twigg from pursuing him. Notably,
Copeland never discharged the handgun.
point thereafter, both vehicles stopped in the road, with
Copeland ahead of Twigg. Copeland got off his motorcycle and
approached Twigg's car, still holding the gun. Twigg
ducked down in his car; and when he looked up, Copeland had
retreated to his motorcycle and no longer had the gun in his
hand. Twigg testified that he then attempted to exit his
vehicle but that Copeland ran back towards him, pinning Twigg
between the driver's door and car frame, causing damage
to his car window. Copeland disagreed, testifying that he
merely approached the car. Eventually, Copeland and Twigg went
their separate ways, and Twigg called 9-1-1. Shortly
thereafter, Copeland was detained by a deputy from the Lake
County Sheriff's Office who recovered a loaded handgun
trial, Copeland's sole defense was that he acted in
self-defense. He conceded that he displayed the loaded
handgun, but testified that he did so only because he was in
fear for his life due to Twigg's aggressive driving
towards him. During the charge conference, Copeland's
counsel specifically requested that the trial court instruct
the jury on the justifiable use of deadly force in
self-defense, which it did. This instruction provides that a
person is justified in using deadly force if he or she
reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or to prevent
the commission of a forcible felony. See Fla. Std.
Jury Instr. (Crim.) 3.6(f). Copeland's counsel did not
separately request Florida Standard Jury Instruction
(Criminal) 3.6(g) on the justifiable use of nondeadly force,
which states that nondeadly force may be used when and to the
extent a person reasonably believes that such conduct or
force is necessary to defend himself or another against the
imminent use of unlawful force. See also §
776.012(1), Fla. Stat. (2017).
argues that his trial counsel was ineffective for failing to
request this nondeadly force self-defense jury instruction.
See Aversano v. State, 966 So.2d 493, 495 (Fla. 4th
DCA 2007) (recognizing an ineffective assistance of counsel
claim on direct appeal for failing to request a specific jury
instruction). To prevail on his ineffective assistance of
counsel claim, Copeland must show: "(1) that [his trial]
counsel's performance was outside the wide range of
reasonable professional assistance, and (2) that such conduct
prejudiced the outcome of the trial because without it, there
is a reasonable probability that the outcome would have been
different." See Mathis v. State, 973 So.2d
1153, 1156-57 (Fla. 1st DCA 2006) (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Spencer v.
State, 842 So.2d 52, 61 (Fla. 2003); Betts v.
State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001)). A
"reasonable probability" is explained as "a
probability sufficient to undermine confidence in the outcome
[of the trial]." Id. at 1157 (quoting
Spencer, 842 So.2d at 61).
ineffective assistance of counsel claims are not cognizable
on direct appeal. Robards v. State, 112 So.3d 1256,
1266 (Fla. 2013). This is because such claims are generally
fact-specific and evidence may be necessary to explain why
certain actions were taken or omitted by trial counsel. As
such, the trial court, in the context of a post-judgment
Florida Rule of Criminal Procedure 3.850 or 3.851 proceeding,
is the proper forum to receive and evaluate such evidence.
See McKinney v. State, 579 So.2d 80, 82 (Fla. 1991).
However, in rare instances, ineffective assistance of counsel
claims may be addressed on the merits on direct appeal where
"(1) the ineffectiveness is apparent on the face of the
record, and (2) it would be 'a waste of judicial
resources to require the trial court to address the
issue.'" Robards, 112 So.3d at 1267
(quoting Blanco v. Wainwright, 507 So.2d 1377, 1384
determining whether this is one of those rare cases, we must
first address whether Copeland's actions in brandishing a
handgun entitled him to the nondeadly force self-defense jury
instruction. When the type of force used by a defendant is
clearly deadly or nondeadly as a matter of law, only the
applicable instruction should be given. DeLuge v.
State, 710 So.2d 83, 84 (Fla. 5th DCA 1998) (citing
Stewart v. State, 672 So.2d 865, 868 (Fla. 2d DCA
1996)). However, "[w]here the evidence at trial does not
establish that the force used by the defendant was deadly or
non-deadly as a matter of law, the question is a factual one
to be decided by the jury, and the defendant is entitled to
jury instructions on the justifiable use of both types of
force." Cruz v. State, 971 So.2d 178, 182 (Fla.
5th DCA 2007) (citing DeLuge, 710 So.2d at 84).
Copeland's display of his handgun does not fall under the
category of deadly force as a matter of law. While a firearm
is, by definition, a deadly weapon,  "the mere display of a
gun, or even pointing a gun at another's head or heart
without firing it, is not deadly force as a matter of
law." Jackson v. State, 179 So.3d 443, 446
(Fla. 5th DCA 2015). Stated differently, the use of a deadly
weapon in self-defense does not summarily equate to the use
of deadly force. DeLuge, 710 So.2d at 84 (citing
Howard v. State, 698 So.2d 923, 925 (Fla. 4th DCA
1997)). Deadly force occurs "where the natural,
probable, and foreseeable consequences of the defendant's
acts are death." Cruz, 971 So.2d at 182 (citing
DeLuge, 710 So.2d at 84; Garramone v.
State, 636 So.2d 869, 871 (Fla. 4th DCA 1994)). In
Florida, to date, the only type of force that has been held
to be deadly force as a matter of law is the discharge of a
it was error for Copeland's trial counsel to have
requested the deadly force jury instruction because it is
undisputed that Copeland never fired his gun or attempted to
discharge his gun during his altercation with Twigg. See
Marty v. State, 210 So.3d 121, 125-26 (Fla. 2d DCA 2016)
(holding that trial counsel was ineffective for requesting
self-defense instruction involving deadly force instead of
nondeadly force because when "there is no dispute that
[the defendant] never fired his gun, there can be no dispute
that [the defendant] used nondeadly force rather than deadly
force," and "[t]hus, the only self-defense
instruction that fits [those] undisputed facts . . . is an
instruction for the justified use of nondeadly force");
Stewart, 672 So.2d at 868 (holding that the
defendant was entitled to an instruction on justifiable use
of nondeadly force in an aggravated assault prosecution, but
not to an instruction on deadly force, when the defendant
used a gun, but only waved it without firing it); see
also Rivero v. State, 871 So.2d 953, 954 (Fla. 3d DCA
2004) ("The use-of-force statute looks to the amount of
force which is actually used. Pointing a firearm ...